T.P.I. -- CRIM. 5.01
VIOLATION OF RICO ACT
Any person who violates the Racketeer Influenced and Corrupt Organization Act of 1989 is guilty of a crime.
For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:
[Part A:1
(1) that the defendant is a person who intentionally, knowingly or
recklessly2 received proceeds derived directly or indirectly [from a
pattern of racketeering activity] [through the collection of an unlawful
debt];
and
(2) that the defendant [used] [invested] [any part of such proceeds] [the
proceeds derived from the use or investments of such proceeds] in
the [acquisition of any (title to) (right in) (interest in) (equity in ) real
or personal property] [establishment or operation of any enterprise];
and
(3) that the defendant acted with criminal intent.]
or
[Part B:3
(1) that the defendant is a person who intentionally, knowingly or
recklessly4 [acquired] [maintained], directly or indirectly, an [interest
in] [control of] any enterprise of real or personal property;
and
(2) that the enterprise was [acquired] [maintained] [through a pattern of
racketeering activity] [through the collection of an unlawful debt].]
or
[Part C:5
(1) that the defendant is a person who was [employed by] [associated
with] an enterprise;
and
(2) that the defendant knowingly [conducted] [participated in], directly or
indirectly, the enterprise [through a pattern of racketeering activity]
[through the collection of an unlawful debt].]
or
[Part D-1:6
(1) that the defendant is a person who intentionally, knowingly or
recklessly7 conspired with another or others to receive proceeds
derived directly or indirectly [from a pattern of racketeering
activity] [through the collection of an unlawful debt];
and
(2) that [any part of such proceeds] [the proceeds derived from the use or
investments of such proceeds] were to be [used] [invested] in the
[acquisition of any (title to) (right in) (interest in) (equity in) (real)
(personal) property] [establishment or operation of any enterprise];
and
(3) that the defendant acted with criminal intent;
and
(4) that there was a meeting of minds among all coconspirators;
and
(5) that one (1) or more of the coconspirators committed an overt act in
furtherance of the conspiracy.]
or
[Part D-2:8
(1) that the defendant is a person who intentionally, knowingly or
recklessly9 conspired with another or others to [acquire] [maintain],
directly or indirectly, an [interest in] [control of] any enterprise of real
or personal property;
and
(2) that the enterprise was to be [acquired] [maintained] [through a
pattern of racketeering activity] [through the collection of an unlawful
debt];
and
(3) that there was a meeting of minds among all coconspirators;
and
(4) that one (1) or more of the coconspirators committed an overt act in
furtherance of the conspiracy.]
or
[Part D-3:10
(1) that the defendant is a person who was [employed by] [associated
with] an enterprise;
and
(2) that the defendant knowingly conspired with another or others to
[conduct] [participate in], directly or indirectly, the enterprise [through
a pattern of racketeering activity] [through the collection of an
unlawful debt];
and
(3) that there was a meeting of minds among all coconspirators;
and
(4) that one (1) or more of the coconspirators committed an overt act in
furtherance of the conspiracy.]
"Intentionally" means a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.11
"Knowingly" means that a person does an act knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.12
[The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.]13
["Recklessly" means that a person acts recklessly with respect to circumstances surrounding the conduct, or the result of the conduct, when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.]14
["Racketeering activity" means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit an act for financial gain which is a criminal offense as alleged in Count(s) _____ of the indictment.]15
["Pattern of racketeering activity" means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents; provided, that at least one (1) of such incidents occurred after July 1, 1986, and that the last of such incidents occurred within two (2) years after a prior incident of racketeering conduct.]16
["Unlawful debt" means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in this state in whole or in part because the debt was incurred or contracted in violation of the offense(s) alleged in Count(s) _____ of the indictment.]17
"Person" means any individual or entity holding or capable of holding a legal or beneficial interest in property.18
["Enterprise" means any individual, sole proprietor, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact although not a legal entity, and it includes illicit as well as licit enterprises and governmental, as well as other, entities.]19
["Personal property" includes any personal property, or any interest in such personal property, or any right, including bank accounts, debts, corporate stocks, patents or copyrights.]20
["Real property" means any real property situated in this state or any interest in such real property, including, but not limited to, any lease of or mortgage upon such real property. Real property and beneficial interest in real property are deemed to be located where the real property is located.]21
[An "overt act" is an act done by one of the parties to carry out the intent of the conspiracy and it must be a step toward the execution of the conspiracy.]22
You are instructed that if you find the defendant guilty beyond a reasonable doubt of any of these offenses, [he] [she] may only be convicted of [either] Count(s) ____ or for one (1) or more of Counts ____, but not both.23
FOOTNOTES
1. Tenn. Code Ann. § 39-12-204(a).
2. Tenn. Code Ann. § 39-11-301(b) and (c). The Committee is of the opinion
that the definitions of "knowingly" and "recklessly", although statutorily
required, are in conflict with element (3). Some judges believe that
only "intentionally" should be charged in Part A.
3. Tenn. Code Ann. § 39-12-204(b).
4. Tenn. Code Ann. § 39-11-301(b) and (c) and accompanying Sentencing
Commission Comment.
5. Tenn. Code Ann. § 39-12-204(c).
6. Tenn. Code Ann. § 39-12-204(d) and (f).
7. Tenn. Code Ann. § 39-11-301(b) and (c) and accompanying Sentencing
Commission Comment.
8. Tenn. Code Ann. § 39-12-204(d) and (f).
9. Tenn. Code Ann. § 39-11-301(b) and (c) and accompanying Sentencing
Commission Comment.
10. Tenn. Code Ann. § 39-12-204(d) and (f).
11. Tenn. Code Ann. § 39-11-106(a)(18).
12. Tenn. Code Ann. § 39-11-106(a)(20).
13. Tenn. Code Ann. § 39-11-301(a)(2).
14. Tenn. Code Ann. § 39-11-106(a)(31).
15. Tenn. Code Ann. § 39-12-203(9).
16. Tenn. Code Ann. § 39-12-203(6).
17. Tenn. Code Ann. § 39-12-203(13).
18. Tenn. Code Ann. § 39-12-203(7).
19. Tenn. Code Ann. § 39-12-203(3).
20. Tenn. Code Ann. § 39-12-203(8).
21. Tenn. Code Ann. § 39-12-203(10).
22. Cline v. State, 204 Tenn. 251, 262, 319 S.W.2d 227, 232 (1958).
23. Tenn. Code Ann. § 39-12-204(e).
COMMENTS
1. A violation of the RICO Act is a Class B felony. Tenn. Code Ann. § 39-12-205(a). The trial judge's attention is directed to Tenn. Code Ann. § 39-12-205(b) regarding the fine to be imposed for violation of this offense.
2. In view of the language of Tenn. Code Ann. § 39-12-204(e), the Committee is of the opinion that this offense must be accompanied by "predicate acts" which should be charged in other counts of the same indictment.
3. If the definition of an offense within Title 39 does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state. Tenn. Code Ann. § 39-11-301(c). Therefore, the Committee is of the opinion that the definitions of "intentionally", "knowingly", and "recklessly" are statutorily required and must be charged for Parts A, B, D-1 and D-2. See also footnote 2 above.